The childcare disparity – it hasn’t gone away!

We have seen a noticeable trickle of cases concerning what is known as the ‘childcare disparity’. This essentially relates to the childcare responsibilities that still largely fall on women’s shoulders, and so impede their flexibility in the workplace.

This is key as a disparity on gender lines opens the way for potential discrimination and most notably indirect discrimination. Any requirement that employees work certain hours could potentially be a provision, criterion or practice (PCP). Any female employee who is unable to work those hours because of caring responsibilities and subsequently suffers is potentially a victim of indirect discrimination. An employer can seek to objectively justify their decision to require adherence to certain working practices, but this will have to demonstrate a strong business need that could not be met any other way.

Recent cases
The first case is Dobson v North Cumbria Integrated Care HHW Foundation Trust. Ms Dobson was a nurse who had three children, two of whom had disabilities. Following a successful flexible working request, she worked certain days so that her mother could help her with childcare. However, in 2016, her employer (the trust) introduced a new working roster which included reviewing all existing flexible working arrangements. Following this review, Ms Dobson was asked to work the occasional weekends. She explained to her employer that she was unable to do this on account of her childcare commitments. The trust would not accommodate Ms Dobson’s request for her previous hours, and she was dismissed and offered new contractual terms. She declined these new terms and bought a claim for unfair dismissal and indirect sex discrimination. The tribunal dismissed her claims, stating that Ms Dobson had failed to demonstrate how this new practice disadvantaged women. However, she was successful on appeal to the Employment Appeal Tribunal (EAT). The chair noted the following; the childcare disparity was still supported by evidence and so must be taken into account in these types of decisions; it did not matter that other female employees could agree to the new pattern of working; the decision as to whether the PCP was justified and the unfair dismissal case needed to be reconsidered by the tribunal.   

In a similar case, Hughes v Progressive Support Limited also heard at the EAT, the judge ruled that there could be indirect discrimination following a change in working practices, even if there was no penalty for refusing to move to the new practices. In this case, Ms Hughes did not lose her job when she could not comply with new working practices, but rather her job security as she was moved to a zero-hours contract. The EAT noted that the proposed new working arrangements were still a PCP but it was sent back to the tribunal to decide whether it presented a disadvantage to female employees, and if so, whether it could be objectively justified. 

What both cases demonstrate is the need for organisations to robustly question the impact of any new working arrangements when altering existing arrangements with their staff. Any change, be that a request to return to an office, a move towards hybrid working or different shift patterns may cause concern or be problematic for some. But changes may be necessary and appropriate and so our advice would be as follows:

• Audit the impact of any major change on your staff – you will only know the impact that you are aware of but that is a good place to start.
• If the audit demonstrates issues for several staff members, especially if they share a protected characteristic, ensure you can demonstrate that the new working arrangement is necessary and there is no other way to affect what you are seeking to achieve with the proposed new arrangements.
• Inform and consult with staff so that you can start to work out what measures may be possible to lessen any burdens that the proposed new arrangements might place on staff and to learn of any impact you were not previously aware of.
• Do not try to rush through any changes – this process will take time and giving staff longer to consider options is more likely to be beneficial in the long run.
• If after this process, some staff do not or are unable to agree to the new arrangements and they cannot be moved elsewhere in the organisation, you will have to consider dismissing them for some other substantial reason. However, before doing this, always ensure you can evidence the reason for the change and its necessity, that you have given time and attention to seeking other solutions and you have sought legal advice specific to the situation.

For more information

If you would like any further information on this, please contact Katherine Sinclair.

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